ADVERTISING INJURY APPLIES TO USE OF AN
INDIVIDUAL’S NAME AS ADVERTISING IDEA
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Commercial General
Liability |
Advertising Idea |
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Personal and
Advertising Injury |
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Vibram, USA, Inc. (Vibram) developed a
minimalist running shoe and named it Bikila. The Bikila family sued Vibram
arguing that Vibram used the name after Abebe Bikila who was a legendary barefooted
runner. They argued, among other items, that Vibram was being unjustly enriched
by using the name without authorization. Vibram sent the suit to its commercial
general liability carrier, Holyoke Mutual Insurance Company in Salem (Holyoke)
for coverage.
Holyoke denied coverage but offered to
provide a defense under a reservation of rights letter. Holyoke and Vibram then
turned to the trial court with both sides requesting summary judgment regarding the coverage issue.
The trial court ruled that the
complaint was about a personality right. Personality rights are part of the
broader term intellectual property rights. The policy did not cover
intellectual property rights, so the court granted summary judgment to Holyoke. Vibram appealed.
Vibram argued that coverage was found
in clause (f) in the definition of advertising injury that reads as follows:
“the use of another’s advertising idea in your “advertisement”
The term “advertisement is defined as:
A notice that is broadcast or published to the general public of
specific market segments about your foods, products or services for the purpose
of attracting customers or supporters.
The Bikila family demonstrated that
they used the Bikila name to promote a variety of running-related ventures. The
Supreme Court Judicial Court of Massachusetts ruled that because the Bikila
family used the name for the same purpose as Vibram that it was arguing an
advertising injury case that was tied to an advertising idea.
The supreme court reversed the trial
court’s decision and granted summary judgment to Vibram.
Holyoke Mutual Insurance Company in
Salem, v Vibram USA, Inc. Supreme Judicial Court of Massachusetts, Suffolk,
September 12, 2018, 480 Mass. 480, 106 N.E. 3rd 572